Texas Supreme Court Clarifies: Reciprocal Discipline Must Be Brought Within Four Years
By Laura Popps
Historically, the Texas Bar hasn’t treated reciprocal discipline, which arises when a Texas attorney is disciplined in another jurisdiction, as subject to the four-year limitations period set forth in Texas Rule of Disciplinary Procedure 17.06(A). Given that disciplinary proceedings in other jurisdictions can take months or even years to resolve, it’s not unusual for a substantial amount of time to pass between the underlying misconduct and the initiation of reciprocal proceedings in Texas.
In a recent decision, the Texas Supreme Court overturned this long-standing assumption. Lane v. Commission for Lawyer Discipline[1] involved a Texas attorney who had been disciplined in Colorado. By the time the State Bar initiated reciprocal discipline proceedings in Texas, more than four years had passed since the underlying misconduct.
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The Commission for Lawyer Discipline (CFLD) advanced two main arguments:
That the statute of limitations in Rule 17.06 does not apply to reciprocal discipline at all, but only to matters initiated by the filing of a “grievance,” which it defined narrowly as a writing that triggers the standard grievance process; and
Even if Rule 17.06 does apply, the limitations period does not begin until the attorney is actually disciplined in the other jurisdiction. This argument was based on the premise that “professional misconduct,” in the context of reciprocal discipline, refers not to the underlying conduct itself but to the formal entry of disciplinary judgment elsewhere.
The Supreme Court disagreed on all fronts, holding that reciprocal discipline actions are, indeed, subject to the four-year statute of limitations under Rule 17.06(A). Contrary to the Bar’s interpretation, the Court held that the rule’s reference to the term “grievance” is not confined to a formal writing that triggers the standard classification and investigation process. Instead, the Court concluded that a grievance can include self-reported misconduct—such as the attorney’s email disclosure in the Lane case.
The Court also found it significant that Rule 17.06 expressly exempts compulsory discipline cases from the four-year limitations period, but does not provide the same exemption for reciprocal discipline, further reinforcing its interpretation.
As for the Commission’s second argument, the Court rejected the idea that “professional misconduct” in the context of reciprocal discipline refers to the entry of a disciplinary judgment in another jurisdiction. Instead, it held that the term refers to the underlying conduct that gave rise to the discipline. As the Court explained, “The requirement that there be resulting discipline in another jurisdiction is merely a limitation on the scope of conduct to which the rules governing reciprocal discipline apply.”[2]
Ultimately, because more than four years had passed since the attorney’s misconduct, Texas was barred from initiating reciprocal discipline proceedings, even though the Bar didn’t receive notice of the out-of-state discipline until shortly before it filed the case.
The Lane decision brings some much-needed clarity to an area that’s operated in a gray zone for too long. By holding that reciprocal discipline is subject to the same four-year limitations period as other disciplinary matters, the Texas Supreme Court reinforced a basic principle of fairness: disciplinary action needs to happen within a reasonable timeframe. The bottom line is that reciprocal discipline in Texas is subject to limitations, and Lane gives dual-licensed attorneys a solid defense for challenging stale claims.
Laura Popps defends Texas attorneys before the State Bar, advises on legal ethics, and
handles criminal appeals. A former prosecutor, Laura has been Board Certified in
Criminal Law by the Texas Board of Legal Specialization since 1999. She then served
for ten years as Regional Counsel at the State Bar of Texas’ Office of Chief
Disciplinary Counsel before founding her own firm.
Laura can be reached at laura@poppslaw.com or (512) 865-5185.